'Enemy Combatant' May Soon Be Freed

Officials are in talks to send the U.S.-born detainee to Saudi Arabia after his legal victory.

By David G. Savage

Los Angeles Times Staff Writer

August 12, 2004

WASHINGTON — The Bush administration on Wednesday took the first step toward release of the American-born "enemy combatant" whose case resulted in a landmark Supreme Court defeat for the White House six weeks ago.

Four months after telling the justices in oral arguments that holding Yaser Esam Hamdi in military confinement was crucial to national security and the war on terrorism, administration lawyers told a judge Wednesday that they were negotiating arrangements to send him back to his family in Saudi Arabia.

In a joint motion filed in Norfolk, Va., lawyers for Hamdi and the Bush administration said they hoped "to resolve this matter under terms and conditions … that would allow Mr. Hamdi to be released." They asked the judge for 21 days to work out the details.

The swift turnaround by the government took even some civil liberties advocates by surprise.

"If all goes well, this is a huge victory for the rule of law," said Deborah N. Pearlstein, a lawyer for Human R ights First. "The reality is that the Supreme Court handed the administration a huge defeat, and releasing Hamdi is one way of complying with that ruling."

A government official, speaking on condition of anonymity, gave a different explanation for Hamdi's release. Hamdi had been questioned for more than two years and had no further "intelligence value," the official said. And because the Taliban was no longer a fighting force, the government saw no need to hold him as a captured soldier.

"This is really about the passage of time. He is no longer a threat to the United States," the official said.

Hamdi, whose parents are Saudi, was born in Louisiana while his father worked in the oil industry there and was therefore a U.S. citizen.

Raised in Saudi Arabia, he was captured on a battlefield in Afghanistan carrying an AK-47 late in 2001. Since then, he has been in U.S. military custody, first at Guantanamo Bay, Cuba, and later at military jails in Norfolk and Charleston, S.C. He r emains in the Navy brig in Charleston.

During Hamdi's confinement, the government insisted he could not speak with his family or a lawyer, and it steadfastly refused him a chance to plead his innocence.

U.S. officials did not say Hamdi was a terrorist. Instead, they said that because he had fought for the enemy, he could be held indefinitely at the president's command.

Hamdi's father, Esam, intervened to seek his son's rescue. He said his son had gone to Afghanistan early in 2001 to do relief work and found himself pressed into military service by the Taliban regime.

Two years ago, the father filed a writ of habeas corpus on his son's behalf before a federal judge in Norfolk, seeking a hearing for his son.

That case became a crucial test in the Supreme Court of the president's power in the war on terrorism.

"The president's war powers include the authority to capture and detain enemy combatants at least for the duration of the conflict," even if they are Ameri can citizens, the Bush administration told the high court.

"No further factual inquiry is necessary or proper" in such cases, the administration added.

But the Supreme Court, in an 8-1 ruling, rejected that view and said citizens had the right to challenge "the factual basis" for holding them in the first place.

The Constitution gives all citizens a right to due process of law, and "Hamdi has received no process," said Justice Sandra Day O'Connor. At minimum, that means he has a right to a lawyer and "a fair opportunity to rebut" the government's case "before a neutral decision-maker."

The case of Hamdi vs. Rumsfeld was then sent back to U.S. District Judge Robert G. Doumar in Norfolk, where Hamdi's father filed the original writ.

Rather than prepare for a trial, the lawyers on both sides have talked about ending the case. Their joint motion Wednesday asked the judge to put matters on hold while the parties "attempt to complete efforts to reach a mutually acceptable resolution of this case."

Frank W. Dunham Jr., the public defender in Alexandria, Va., who has represented Hamdi during the two-year legal battle, said he was optimistic.

"There will be some strings attached, but he will be there with his family, not in solitary confinement," he said.

"This is not a transfer of custody from the United States to Saudi Arabia…. I anticipate this will be worked out within 21 days."

Government officials familiar with the negotiations said they expected a deal would be arranged. They were not seeking punishment for Hamdi, only some assurance that he would not return to fighting in Afghanistan.

They also said the possible resolution of Hamdi's case did not affect the case of the other American-born "enemy combatant" — Jose Padilla, who is being held on suspicion of conspiring with Al Qaeda to detonate a radioactive "dirty" bomb in the United States.

In response to a separate high court ruling, the administration also is moving ahead with plans to hold military hearings for the men detained at Guantanamo Bay. However, their lawyers are challenging these procedures as unfair and inadequate.